Citation Nr: 1326823
Decision Date: 08/22/13 Archive Date: 08/29/13
DOCKET NO. 10-13 829A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to a rating higher than 50 percent, prior to September 2, 2011, for posttraumatic stress disorder (PTSD) with major depressive disorder.
2. Entitlement to a total disability rating due to individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: James G. Fausone, Attorney
ATTORNEY FOR THE BOARD
C. Bruce, Counsel
INTRODUCTION
The Veteran served on active duty from November 1988 to April 1990.
This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, a local Decision Review Officer (DRO) at the RO granted an increased rating of 50 percent for the Veteran's service-connected PTSD with major depressive disorder, retroactively effective from May 29, 2007, the date of receipt of her claim for a higher rating for this disability. She appealed for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication otherwise).
Another DRO decision since issued in January 2012, during the pendency of this appeal, again increased the rating for the PTSD with major depressive disorder - this time to the highest possible level of 100 percent as of September 2, 2011, the date of a VA compensation examination. So this claim now concerns whether the Veteran was entitled to a rating higher than 50 percent for this disability for the immediately preceding period dating back to her May 29, 2007 claim.
Meanwhile, in October 2010, so also during the pendency of this appeal for a higher rating for her PTSD with major depressive disorder, the Veteran filed an additional claim for a TDIU. In years past, if a Veteran received a 100 percent schedular rating for a service-connected disability, the issue of entitlement to a TDIU became moot since a Veteran could not have a 100 percent schedular rating while concurrently having a TDIU. 38 C.F.R. § 4.16(a); VAOGCPREC 6-99 (June 7, 1999), 64 Fed. Reg. 52375 (1999). Other precedential decisions also discussed this interplay. See, e.g., Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). Essentially, VAOGCPREC 6-99 held that receipt of a 100 percent schedular rating for a
service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet.App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot).
But in view of the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which took a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99.
VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award of SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See Bradley at 294; see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that, if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU independent of the other 100 percent disability rating).
SMC is payable at the housebound (HB) rate where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).
Subsection 1114(s) requires that a disabled Veteran, whose disability level is determined by the Rating Schedule, must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010).
As this Veteran does not however have a service-connected disability rated at 60 percent separate and apart from the 100 percent service-connected disability, or is permanently housebound by reason of a service-connected disability, she is not eligible for SMC. Service connection is in effect for her PTSD with major depressive disorder and rated as 100-percent disabling as of September 2, 2011. Service connection also is in effect for genital herpes, but which is rated as just
10-percent disabling. In light of Buie and Bradley, and VA's obligation to maximize the Veteran's benefits, VA must determine whether she meets the criteria for a TDIU based on the aggregate impact of this other service-connected disability. But there is no such suggestion or indication that the other service-connected disability, alone, meets the rating criteria for the assignment of a TDIU. 38 C.F.R. § 4.16(a). So the granting of the 100 percent schedular rating for her PTSD with major depressive disorder renders moot any claimed entitlement to a TDIU after September 2, 2011. However, her claim for a TDIU prior to that date is still on appeal and resultantly will be addressed in this decision.
FINDINGS OF FACT
1. Prior to September 2, 2011, the Veteran's PTSD with major depressive disorder caused occupational and social impairment with deficiencies in work, social, family relations, judgment, thinking, and mood, due to such symptoms as near-constant depression and anxiety, intrusive thoughts, isolative behavior, impaired memory and concentration, and outbursts of anger indicating impaired impulse control.
2. Aside from her PTSD with major depressive disorder, which, as a result of this decision, will now be rated as 70-percent disabling, service connection additionally is in effect for genital herpes, rated as 10-percent disabling.
3. The competent and credible evidence indicates her service-connected PTSD with major depressive disorder is so severe that it precludes her from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison.
CONCLUSIONS OF LAW
1. The criteria are met for a higher 70 percent rating for the PTSD prior to September 2, 2011, more specifically, as of receipt of the claim for a higher rating for this disability on May 29, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126-4.130, Diagnostic Code (DC) 9411 (2012).
2. The criteria also are met for a TDIU. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Duties to Notify and Assist
Pursuant to the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate the claim, (2) the information and evidence VA will obtain, and (3) the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008), eliminating the so-called "fourth" requirement that VA also request that she submitted all relevant evidence in her personal possession).
A letter dated in January 2009 satisfied this duty to notify obligation. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter advised the Veteran-Appellant of the information and evidence needed to substantiate her claim and of her and VA's respective responsibilities in obtaining this supporting evidence. To this end, the letter requested that she provide enough information for the RO to request records from any sources she identified, including medical records, employment records, and records from other Federal agencies.
The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the VCAA notice, if provided concerning a claim of entitlement to service connection for a particular disability, also should include information concerning the disability rating and effective date elements of the claim, which in actuality are "downstream" elements once service connection is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This claim did not arise in that context, however, instead, from the very outset as a claim for a higher, i.e., increased rating for an already established service-connected disability. And specifically with regards to the notice requirements for increased-rating claims, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) vacated the lower Court's (CAVC's) previous decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that "generic" notice in response to a claim for an increased rating is all that is required, and that VA does not have to apprise the Veteran of alternative DCs or request evidence of how the disability at issue impacts daily life. In any event, a March 2006 letter provided Dingess notice. The Board therefore concludes she has received all required notice concerning her increased-rating claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
VA also has satisfied its duty to assist her with this claim by making reasonable efforts to identify and obtain relevant records and providing a VA examination. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i). To this end, her service treatment records (STRs) and VA treatment records were obtained and associated with her claims file for consideration.
VA examinations were provided in February 2009, December 2010, and September 2011. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture. See Schafrath v. Derwinksi, 1 Vet. App. 589, 594 (1991). If it does not, it is incumbent on VA adjudicators to return the report as inadequate, for correction. 38 C.F.R. § 4.2 (2012). The VA examinations and medical opinions resultantly obtained concerning the severity of the Veteran's disability are more than adequate, as they collectively are predicated on a review of her medical records and evaluation and treatment history. The examiners considered all of the pertinent evidence of record, including her personal statements, and examined her personally. They also provided rationale for their opinions, relying on the findings from their evaluations of her disability and, when necessary, citing to these findings and the other records supporting their conclusions.
There is no obligation to have her reexamined, yet again, simply as a matter of course or merely because of the passage of time since an otherwise adequate examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995). And according to the records in the file, there is no suggestion of a material change in her disability since her most recent VA compensation examination in September 2011 (the findings of which were used to increase the rating for her PTSD with major depressive disorder to the highest possible schedular level of 100 percent). Indeed, as the only concern now is the severity of her PTSD with major depressive disorder prior to September 2, 2011, the date when she had that VA compensation examination, the more recent severity level of her disability is not really at issue. So reexamination of this disability is not required. 38 C.F.R. § 3.327(a).
Moreover, since in this decision the Board is granting her derivative TDIU claim, the Board need not discuss whether there has been compliance with the VCAA's notice-and-duty-to-assist obligations as concerning this claim because she is receiving this requested benefit, regardless, so even if for the sake of argument there has not been. 38 C.F.R. § 20.1102 (2012). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. There simply is no such possibility in this instance.
Under the circumstances of this case, then, the record has been fully developed, and it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence she should submit to substantiate her claims. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See, too, Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, just further overburden VA's already limited resources). The Board, therefore, may proceed with its adjudication of the claims.
Merits of the Claims
Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3.
The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). But where entitlement to compensation already has been established and an increase in disability rating is at issue, as here, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all of the evidence of record, the more critical, that is, temporal focus, is the evidence generated during the appeal period and, more specifically, since one year prior to filing this increased-rating claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If there have been occasions since when the disability has had differing degrees of severity, then the Board must "stage" the rating to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, VA's determination of the "present level of disability" may result in concluding the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that Veteran had disability "at some point during the processing of his claim," satisfied service-connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart, the Court found no basis for drawing a distinction between initial ratings (see Fenderson v. West, 12 Vet. App. 119, 125-26 (1999)) and increased-rating claims for applying staged ratings. Accordingly, it was held that a staged rating is appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.
In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or here, her] earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).
Mental disorders are evaluated under a General Rating Formula found at 38 C.F.R. § 4.130. In addition, the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed in 38 C.F.R. § 4.130.
When evaluating a mental disorder, the evaluation must be based on all the evidence of record bearing on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).
According to the General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130, the Veteran's 50 percent rating, currently applicable to the period prior to September 2, 2011, requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. Id.
The next higher 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id.
The next higher, and maximum, 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130.
In determining whether the Veteran meets the criteria for an increased rating, the Board must consider whether she has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet.App. 1, 11 (2001).
In evaluating the evidence, the Board also has considered Global Assessment of Functioning (GAF) scores that evaluating clinicians have assigned. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. The higher the score, the higher the overall functioning of the individual is.
According to the DSM-IV, a score of 41 to 50 represents serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51-60 represents "moderate" symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or "moderate" difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers). A GAF score in the higher 61-70 range is indicative of some "mild" symptoms or some difficulty in social or occupational functioning, but generally functioning pretty well and has some meaningful interpersonal relationships. Id.
Turning now to the relevant facts of this particular case. The Veteran was afforded a VA compensation examination in February 2009. The examiner noted that medical records were reviewed, but that the Veteran's claims file was not available for review. The Veteran stated during that examination that she had experienced symptoms in the past year and that she was then currently treating her mental disorders with anti-depressants. She reported limited social contacts and leisure pursuits, although she did sometimes attend movies with her daughter. She further noted she had limited social support and had recently had great difficulty completing her college degree. On objective mental status evaluation, she was cooperative and friendly with coherent speech and appropriate dress and affect. She did, however, have a depressed and anxious mood. The examiner noted that, with regards to thought process, the Veteran had ruminations, often believing she had been mistreated by others. She reported sleep impairment with some reversal of sleep-wake cycle, difficulty in falling asleep, and some periods of excessive sleep. The examiner observed both homicidal and suicidal thoughts. While the Veteran did not report any episodes of violence, she did acknowledge often having road rage. She had mildly impaired recent and immediate memory as well as problems with attention and concentration. The examiner noted that the Veteran had recurrent and intrusive distressing recollections of traumatic events that made her try to avoid thoughts, feelings, or conversations associated with the trauma. She had markedly diminished interest or participation in significant activities and feelings of detachment or estrangement from others. She displayed persistent symptoms of increased arousal through difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, and exaggerated startle response. Her symptoms were determined to be chronic and severe with prominent anger and mood symptoms. The examiner explained that the Veteran's anxiety and mood symptoms had a significant impact on her ability to obtain and keep pursuing employment. Her PTSD symptoms, including her difficulty with concentration and motivation, had contributed to her social withdrawal and difficulty with work and performance. The examiner noted that, while the Veteran did not have total occupational and social impairment, she did have deficiencies in most areas including thinking, family relations, work, mood, and school.
The Veteran was again afforded a VA compensation examination in December 2010. The examiner noted that the claims file was reviewed. The examiner indicated the Veteran was no longer taking anti-depressants. The Veteran initially noted that she was stressed out due to problems with employment. She reported that she had lost two jobs since receiving her nursing degree in 2008. She further reported that her employment issues were the result of an inability to deal with management and that her second job had ended after she had a rage attack and the police had to be called to remove her from the building. Her last employment had ended in June 2009. She stated that applying for new jobs had been difficult given her work history and that she was afraid she could not handle the stress even if she found a job. She reported that she had no then current hobbies, and that she stayed home and watched television almost every day. She said her daughter had moved away to live with her ex-husband and that her only human interaction was with her partner, with whom she lived. She further noted that she and her partner were having problems, fighting and arguing, due to the Veteran's rage issues. She reported an explosive temper and noted that her anger issues were her biggest problem and had caused problems in her relationships with her daughter and her partner and in interactions with peers and management in her workplace. She stated she was becoming increasingly fearful about herself given her rage issues. When driving, she noted that her road rage was so bad that she preferred to have someone go with her whenever she went out. She reported that, following an incident at work where a patient was found to have weapons hidden, she started having recurring thoughts about her time in the service when she was repeatedly sexually harassed. She is hypervigilant and quite concerned about her own safety. She stated she had sleep disturbance despite often spending the entire day in bed. She reported feeling hopeless and noted that life would be easier for everyone if she were not around.
On objective mental status evaluation, she was weepy with a moderately-depressed mood and affect. She displayed a mild degree of irritability and was moderately nervous during the interview. The examiner observed the Veteran's feelings of hopelessness and her passive thoughts of self harm, but noted that she had no active plans or intentions of doing anything against her life. She noted her only interactions were with her immediate family and her partner because she had trust issues with everyone else. She denied any auditory or visual hallucinations as well as paranoid thinking. She displayed poor concentration, although her judgment and insight were fair. The examiner assessed that she was having persistent moderate-to-severe symptoms including complicating depression that worsened her sense of self and her self confidence. She was unable to maintain a working relationship with peers and management. Increasing her stress level manifests more symptoms of anger, hypervigilance, and reliving traumatic events. She has moderate-to-severe impairment in occupational and interpersonal functioning due to her isolating herself in her home due to mistrust of people as well as fear of exhibiting uncontrollable outbursts of rage in a public setting.
In an April 2010 statement the Veteran noted that her depression and PTSD continued to plague her. She stated she was unable to keep a job because she could not handle stressful situations or being criticized in any way by management. She further stated that her anger and rage issues were causing problems with her daughter and partner and that she was afraid that eventually they would both abandon her as a result. She also maintained that she had lost all love for herself and could no longer control her outbursts of anger.
Her daughter provided a letter of support in May 2010, which stated that her mother had become so difficult to be around that she had moved out to avoid dealing with her. She noted that her mother was easily enraged and had recently become physically violent, including having grasped the daughter's neck and forced her to the ground leaving bruises. The daughter stated she would not ride in a car with her mother as she uses the vehicle as a weapon. She noted her mother had stopped taking care of herself and that she was constantly either sad or mad because she believed everyone was out to get her. She stated her mother often refused to shower and spent her days playing violent video games to "take out aggression." She stated that her mother used to be compassionate, but now lived in a delusional state where everyone is out to harm her. She concluded that her mother would be unable to work.
This evidence, especially when considered collectively, indicates the Veteran has been entitled to a higher 70 percent rating since the filing of her increased-rating claim on May 29, 2007, because she has shown occupational and social impairment with deficiencies in mood, work, family relations, thinking, and judgment. Indeed, even the VA compensation examiner confirmed as much. Specifically, the Veteran has described intense feelings of depression and anger on a daily basis. She described having intrusive thoughts and hypervigilance. She does not sleep well. These symptoms contribute to her irritability, her poor concentration, and her avoidance of social functions. She needs to be reminded to bathe and maintain her hygiene. She has no patience and has thoughts about hurting herself and others (road rage), albeit not necessarily active intent, which in turn prevents her from establishing new relationships and would also affect her ability to find and keep employment. She has unprovoked explosive anger reactions. She feels isolated, and isolates herself from everyone except her daughter and her partner. Her daughter recently moved out to avoid dealing with her mother's anger issues, after one incident in particular. Her only friend is her partner with whom she is also having a difficult relationship. She has had vague notions of suicide and homicide, although she stated she has no plan and would not actually harm herself or others. This is despite her daughter stating in the May 2010 letter that her mother had become physically violent with her.
But while the Board finds that the Veteran is entitled to a higher 70 percent rating for the period at issue (prior to September 2, 2011, dating back to the May 29, 2007 claim) the severity of her symptoms did not reach the level of a 100 percent disability rating until evidenced during her September 2, 2011 VA compensation examination. Until then, she had shown entitlement to at most a 70 percent rating (though even greater than the 50 percent rating the DRO assigned). In this regard, the Board points out she did not exhibit gross impairment in her thought process or communication, there was no evidence of persistent delusions or hallucinations, no evidence of disorientation to time, place, or person, and no evidence of memory loss for names of close relatives, her own occupation, or her own name.
Moreover, while she did note that she suffered from road rage and other outbursts of rage, there was no evidence of grossly inappropriate behavior or persistent danger of hurting herself or others, that is, notwithstanding the relatively few specific incidents already mentioned, including the one with her daughter in particular. During the February 2009 VA compensation examination it was indicated she had suicidal and homicidal ideation, but that there is no suggestion that her homicidal ideation was meant for anyone in particular, and she herself stated that she had no plan and would never actually take her own life. The Board also is mindful of the statements made by the daughter regarding her mother's personal hygiene, and while this meets the level of neglect of personal appearance and hygiene, there is no suggestion the Veteran was unable to perform activities of a daily living (ADLs). Moreover, the VA compensation examiner indicated that, while the Veteran had moderate-to-severe social and occupational impairment, it could not be said that she had total social and occupational impairment. Accordingly, applying the benefit-of-the-doubt doctrine, the Board finds she is entitled to a higher 70 percent disability rating dating back to her May 29, 2007 claim, but not to an even higher 100 percent schedular rating until her VA compensation examination on September 2, 2011.
The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a).
The law provides an exception to this general rule governing claims for increased ratings. 38 U.S.C.A. § 5110(a), (b)(2). If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134-135 (1992); VAOPGCPREC 12-98, 63 Fed. Reg. 56704 (1998). See, too, Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a
one-year grace period for filing a claim following an increase in the severity of a service-connected disability).
Thus, three possible dates may be assigned depending on the facts of the case:
(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));
(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or
(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2) ).
Harper, 10 Vet. App. at 126.
So determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2).
Here, it was not indicated during the year immediately preceding the filing of the Veteran's increased-rating claim on May 29, 2007 that she was entitled to this higher 70 percent rating, certainly not the even greater 100 percent rating. So the date of receipt of her claim marks the effective date for the higher 70 percent rating, and the date of her VA compensation examination - September 2, 2011 - marks the date of her entitlement to the even higher 100 percent schedular rating.
Extra-schedular Consideration
In evaluating the Veteran's claim for a higher rating, the Board also has considered whether she is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).
Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extra-schedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."
The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008).
If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Rating Schedule for that disability. See Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id.
The Board finds that referral for extra-schedular consideration is not warranted in this case. The Veteran's reported symptoms (i.e., near-constant depression, isolating behavior, and feelings of rage with periods of violence) are contemplated by the rating criteria. There are no symptoms left uncompensated or unaccounted for in her assigned schedular rating, especially by the higher 70 percent rating she is receiving in this decision. The evidence, then, does not indicate her PTSD with major depressive disorder presents "such an exceptional or unusual disability picture...as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2012). The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extra-schedular consideration. Id. Rather, the impairment must be so unusual as to be unanticipated by the rating criteria. See id. Because the Board finds that the symptoms caused by the Veteran's PTSD with major depressive disorder are contemplated by the rating criteria, there is no need to consider whether it requires frequent periods of hospitalization or causes marked interference with her employment, meaning above and beyond that contemplated by the assigned schedular ratings, especially when also realizing that a TDIU is being additionally granted in this decision. Thun v. Peake, 22 Vet. App. 111, 115 (2008).
Entitlement to a TDIU
The Veteran claims she is unable to obtain or maintain substantially gainful employment because of the severity of her PTSD with major depressive disorder and, therefore, entitled to a TDIU.
A TDIU requires impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the claimant's level of education, special training, and previous work experience in arriving at a conclusion, but not to his/her age or to impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.18, 4.19 (2012). In making this determination, then, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993).
If there is only one service-connected disability, it must be ratable at 60 percent or more. Whereas, if there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. But disabilities resulting from common etiology or single accident, among others, will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a).
Now, as a result of this decision, until September 2, 2011, the Veteran had a 70 percent rating for her PTSD with major depressive disorder and a 10 percent rating for her genital herpes. Therefore, she satisfies the threshold minimum rating requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU - that is, without having to resort to the special extra-schedular provisions of 38 C.F.R. § 4.16(b). So the only remaining consideration is whether her service-connected disabilities render her unable to obtain and maintain substantially gainful employment.
In Hatlestad v. Derwinski, 1 Vet.App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by VA's General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91.
A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). To reiterate, in evaluating a Veteran's employability, consideration may be given to her level of education, special training, and previous work experience in arriving at a conclusion, but as mentioned not to her age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. See also Hodges v. Brown, 5 Vet.App. 375 (1993); Blackburn v. Brown, 4 Vet.App. 395 (1993); and Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992).
While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." See, too, Moore v. Derwinski, 1 Vet.App. 356, 358 (1991). Also, in Faust v. West, 13 Vet.App. 342 (2000), the Court defined "substantially gainful employment as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...."
In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):
It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.
Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet.App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id.
Requiring a Veteran to prove that she is 100-percent, i.e., totally unemployable is different than requiring she prove that she cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).
As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).
That said, as already alluded to, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability, especially when the Veteran has a schedular rating in the higher end of the rating spectrum. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether she is capable of performing the physical and mental acts required by employment, not whether she can find employment.
Turning now to the facts of this case, the Board notes initially that in the report of the February 2009 VA examination the examiner indicated the Veteran's PTSD with major depressive disorder, including her anxiety and mood symptoms and her inability to concentrate and her difficulty with interpersonal relationships, would have significant impact on her ability to pursue employment.
The December 2010 VA examination report noted essentially the same thing, pointing out the Veteran had been unable to maintain employment since June 2009. It was further explained that her last job had ended after a rage attack that had required the summoning of police to escort her from the building. The examiner resultantly determined the Veteran was unable to maintain a working relationship with her peers or management. Indeed, the examiner concluded that returning to full-time work would be difficult for the Veteran because her previous work experiences were traumatizing and her symptoms of anger, hypervigilance, and reliving traumatic events were increased with stress and work demands.
Further, the Board sees that the Veteran's previous employment was as a nurse. Such a vocation would require her to frequently interact with people (patients), including perhaps complete strangers, and to place herself in unfamiliar situations. These are the type of scenarios that make her fearful of exhibiting uncontrollable outbursts of rage. It is also reasonable to assume there would be demands on her time in this type job, both in terms of the length of her shifts and amount of them over a given period of time. So she likely would be repeatedly placed in situations that might prove harmful, both for her personally and a patient she is attending to. There is no indication she has any other type of employment experience, and her inability to concentrate for extended periods of time coupled with difficulty in adapting to stressful circumstances would seriously impair her ability to enter into a new field. In summary, then, the Board finds that the evidence shows her PTSD with major depressive disorder is of such severity that she is rendered unable to secure or follow a substantially gainful occupation in any meaningful capacity. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Thus, with resolution of all reasonable doubt in her favor, she is entitled to a TDIU. 38 C.F.R. § 4.3.
ORDER
A higher 70 percent rating (rather than just a 50 percent rating) is granted for the PTSD with major depressive disorder as of the receipt of the increased-rating claim on May 29, 2007, subject to the statutes and regulations governing the payment of VA compensation.
The derivative TDIU claim also is granted, also subject to the statutes and regulations governing the payment of VA compensation.
______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs